ARTICLE THE MYTH OF THE NONDELEGATION DOCTRINE KEITH E. WHITTINGTON† & JASON IULIANO†† For much of the nineteenth and early twentieth centuries, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative. Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940—more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth. INTRODUCTION ............................................................................. 380 I. THE “CONSTITUTION IN EXILE” .............................................. 384 II. DEVELOPMENT OF THE NONDELEGATION DOCTRINE............. 388 A. The Constitutional Foundations ..................................................... 388 B. The Doctrine in the Supreme Court ................................................ 392 C. The Doctrine in State and Lower Federal Courts ............................. 405 III. JUDICIAL PRACTICE IN NONDELEGATION CASES ...................... 417 CONCLUSION ................................................................................. 429 † William Nelson Cromwell Professor of Politics, Princeton University. †† Associate Research Scholar, Yale Law School; Ph.D. candidate in Politics, Princeton University; J.D., Harvard Law School. We thank Richard Epstein, Samuel Estreicher, Roger Ford, Jacob Gersen, and Daniel Kelly for valuable comments and discussions relating to this project. (379) 380 University of Pennsylvania Law Review [Vol. 165: 379 INTRODUCTION Nondelegation doctrine cases follow a predictable pattern. Every few years, a court of appeals invokes the doctrine to strike down a federal statute.1 The Supreme Court inevitably grants certiorari and overturns the appellate decision, holding that the statute is a constitutional delegation of legislative authority.2 Without fail, the Supreme Court ruling sparks a heated debate among constitutional law scholars. Some support the decision—praising the Court for driving another nail into the coffin of the nondelegation doctrine.3 Others oppose the decision—lamenting the Court’s failure to revive the doctrine and use it to rein in the ever-expanding administrative state.4 Despite their intense disagreement over what role the nondelegation doctrine ought to play in today’s legal system, both groups of scholars agree on the role that the doctrine has played throughout U.S. history. Specifically, they all endorse the narrative that, during the nineteenth and early twentienth centuries, the nondelegation doctrine served as a meaningful check on the unbridled expansion of the administrative state.5 Then, during the New Deal, the Supreme Court dismantled the doctrine and paved the way for Congress to delegate away any powers it deemed appropriate.6 1 See, e.g., Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 721 F.3d 666, 677 (D.C. Cir. 2013) (holding that the Passenger Railroad Investment and Improvement Act of 2008 unconstitutionally “delegate[d] regulatory authority” to Amtrak); Am. Trucking Ass’ns v. EPA, 175 F.3d 1027, 1038 (D.C. Cir. 1999) (finding that the EPA relied on a construction of the Clean Air Act in promulgating [air quality standards] that “involve[d] an unconstitutional delegation of [legislative] power”). 2 See, e.g., Dep’t of Transp. v. Ass’n of Am. R.Rs., 135 S. Ct. 1225, 1233-34 (2015) (overturning the D.C. Circuit’s decision regarding the unconstitutionality of the Passenger Railroad Investment and Improvement Act of 2008’s delegation of authority); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001) (finding that “[t]he scope of discretion [the Clean Air Act provision in question] allows is in fact well within the outer limits of our nondelegation precedents”). 3 See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 494 (1987) (arguing that “[a] general revival of the nondelegation doctrine would also be a mistake in light of a range of considerations,” including the reasonableness of delegation and the difficulty judges would have in managing a nondelegation principle). 4 See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 8-17, 63-67 (1982) (tracing the roots of the delegation principle and arguing for a “renewed nondelegation doctrine”); Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 335-43 (2002) (defending the nondelegation doctrine on originalist grounds); David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1249-74 (1985) (proposing an improved test for determining what congressional delegations of power are improper). 5 See Sunstein, supra note 3, at 447 (noting the opposition of the courts to “statutes creating agencies” on nondelegation grounds during the early New Deal era); see also Aranson et al., supra note 4, at 8-17 (describing the traditional nondelegation narrative of the Supreme Court using the doctrine to prevent the expansion of federal New Deal programs). 6 See Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1237-41 (1994) (arguing that the Supreme Court has abandoned the nondelegation doctrine as a tool to hold legislation unconstitutional); Sunstein, supra note 3, at 447-48, 482 (noting “the downfall of the nondelegation doctrine” when the Court ended its assault on New Deal reforms and began tolerating broad delegations of authority). 2017] The Myth of the Nondelegation Doctrine 381 In this Article, we argue that this narrative is wrong. Drawing from our own dataset of more than two thousand nondelegation cases, we show that there was never a time in which the courts used the nondelegation doctrine to limit legislative delegations of power. In short, we expose the myth of the nondelegation doctrine. Before presenting these findings, we briefly situate the nondelegation doctrine in the context of the New Deal to illustrate why our analysis represents such an important and dramatic departure from accepted wisdom. As scholars have long maintained, the New Deal transformed the landscape of American constitutional law. The constitutional scholar Edward Corwin characterized the U.S. Supreme Court’s capitulation to the Franklin D. Roosevelt Administration as a “constitutional revolution.”7 Historian William Leuchtenberg saw the Supreme Court—and the Constitution—as “reborn” following the 1937 “switch in time.”8 Constitutional theorist Bruce Ackerman characterized the New Deal as a moment of transformation that marked the transition to an entirely new constitutional regime.9 And political scientist Howard Gillman concluded that the Constitution, as well-trained lawyers understood it, was “besieged” and eventually “collapsed” in the 1930s.10 Part of what distinguishes the New Deal from other episodes of constitutional change is the breadth and depth of the reevaluation of established constitutional doctrine. Most famously, the bonds of “substantive due process” and expansive constitutional protections for property rights were cast off in favor of a regime of “preferred freedoms.”11 The economic 7 See EDWARD S. CORWIN, CONSTITUTIONAL REVOLUTION, LTD. 112-14 (Am. Offset Printers rev. ed. 1946) (1941) [hereinafter CORWIN, CONSTITUTIONAL REVOLUTION] (arguing that the Court’s decisions upholding New Deal legislation greatly weakened the power of judicial review to check “national legislative power”). 8 See WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 233, 235 (1995) (noting the consensus among historians that the year 1937 marked the beginning of a new era in the Supreme Court’s constitutional jurisprudence and “altered fundamentally the character of the Court’s business, the nature of its decisions, and the alignment of its friends and foes”). 9 See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 114-15 (1991) (describing the Court’s shift during the New Deal as “a transformative [constitutional] amendment expressing a profound, but not total, change in American constitutional identity”). 10 See HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE 201 (1993) (“The ‘constitutional revolution of 1937’ marked the moment when the Founders’ conception of a faction-free American Republic collapsed . .”). 11 See G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 198-99 (2000) (describing the traditional account of the Supreme Court’s retreat in political economy cases involving the Commerce, Due Process, and Contract Clauses); Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, 47 POL. RES. Q. 623, 625 (1994) (arguing that as the courts relaxed restrictions on the legislative power to regulate the economy, they enshrined individual liberties as “preferred freedoms” that would receive special judicial protection). 382 University of Pennsylvania Law Review [Vol.